Opinion
No. 29863.
February 29, 1932. Suggestion of Error Overruled April 11, 1932.
1. STATUTES. Where statute contains both particular and general enactment, and general enactment includes that embraced in particular one, latter must be given effect as to all cases falling therein.
In such case, the general enactment must be taken to embrace only such cases within its general language as are not within the provisions of the particular enactment.
2. OFFICERS.
"Malfeasance" is doing of that which officer has no authority to do and which is positively wrong or unlawful.
3. OFFICERS.
"Misfeasance" by officer is doing in wrongful manner that which law authorizes or requires him to do.
4. OFFICERS.
"Nonfeasance" by officer is substantial failure to perform duty.
5. ATTORNEY GENERAL. Insurance commissioner's appointment of disqualified person as deputy fire marshal, would constitute "misfeasance;" hence, attorney-general, not auditor, was proper party to sue commissioner to recover payments to disqualified person ( Code 1930, section 3753).
If insurance commissioner appointed person disqualified under Code 1930, sections 2905, 2906, act was one of misfeasance, since statute authorizes and requires insurance commissioner to appoint and pay a deputy fire marshal, and therefore the particular provision of Code 1930, section 3753, requiring the matter of a suit involving misfeasance by a state officer to be referred to and brought by attorney-general, was applicable, and the general provisions of section 3753 giving auditor authority to sue were inapplicable.
APPEAL from chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
Lotterhos Travis, of Jackson, for appellant.
The auditor is authorized to bring this suit.
Sec. 3753, Code of 1930.
Since the construction contended for by the appellees would have the effect of destroying the broad purpose of the statute and nullifying the express language conferring on the auditor the power and duty of maintaining suits, the word "shall" should be construed as directory only with respect to delivering copies of audits to the attorney-general and the district attorneys.
Cason v. Cason, 31 Miss. 578; Koch v. Bridges, 45 Miss. 247.
If the right of the state auditor to maintain this action is denied, this would amount to a repeal of that part of the statute which expressly and clearly confers upon him the power to maintain suits against delinquent officers.
McKenzie v. Boykin, 111 Miss. 256, 71 So. 382; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886; Adams v. Y. M.V.R.R. Co., 75 Miss. 275, 22 So. 824; Martin v. O'Brien, 34 Miss. 21; State v. Grenada County, 141 Miss. 701, 105 So. 541.
Whether the revenue agent and the attorney-general, or district attorney, had the right to maintain a suit for the recovery of statutory penalties where different sections of the same code, adopted at the same time, conferred by the use of the word "shall" the right on each to bring the suit. The grant of the power to the district attorney and the attorney-general was held not exclusive, and the right of the revenue agent to maintain a suit for a statutory penalty was upheld.
Dukate v. Adams, 101 Miss. 438, 58 So. 475.
Whenever necessary to effectuate the obvious meaning of the legislature, conjunctive words may be construed as disjunctive and vice versa.
36 Cyc. 1123; Adams County v. Catholic Diocese of Natchez, 110 Miss. 870, 71 So. 17; Board of Supervisors v. Booth, 81 Miss. 267, 32 So. 100.
In construing the statute the court must seek the legislative intent from the statute as a whole.
Henderson v. Blair, 59 So. 856, 102 Miss. 640; Johnson v. Reeves Co., 72 So. 925, 112 Miss. 227; Roseberry v. Norsworthy, 100 So. 514, 135 Miss. 845.
A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the maker.
Ott v. Lowry, 78 Miss. 487, 29 So. 520.
In determining whether the statutes are mandatory or directory, the legislative intent governs.
People v. Miller, 145 N.E. 685, 314 Ill. 474; Goodrich v. Soula, 110 A. 808, 119 Me. 280; M.P. Railway v. McIntosh, 218 P. 693, 92 Okla. 153; Valley Bank v. Malcolm, 204 P. 207, 23 Ariz. 395; Phillips v. State, 258 S.W. 403, 162 Ark. 541; Town of Milton v. Cook, 138 N.E. 585, 244 Mass. 93; Hess Skinner Engineering Co. v. Turney, 203 S.W. 593, 109 Tex. 208; Allen v. Lewis, 177 P. 433, 26 Wyo. 85.
The vesting of the right in an officer to maintain a suit, even though the most mandatory language possible is used, will not be deemed an exclusive grant unless the intent to make it such is very, very clear.
Kemp et al. v. State to Use of Madison County, 24 So. 695; Dukate v. Adams, 101 Miss. 438, 58 So. 475.
Section 3727, Code of 1930 statute has been the law of Mississippi since a date prior to 1848 and gives to the auditor very broad powers and duties with respect to the collection of moneys due the state by suit or otherwise, and contains no exceptions or limitations.
E.C. Sharp, Creekmore Creekmore, Chalmers Potter and Wells, Jones, Wells Lipscomb, all of Jackson, for appellees.
The statute now under consideration is in derogation of the common law. Such statutes as take away common-law right, remove or add to common-law disabilities, confer privileges or provide for proceedings unknown to the common law, or which are in derogation of the common law, are strictly construed. The courts cannot properly give force to them beyond what is expressed by their words, or is necessarily implied from what is expressed. Statutes changing the common law are strictly construed, and it is not further abrogated than the language of the statute clearly and necessarily requires.
2 Lewis' Sutherland Stat. Constr., sec. 573.
Where a statute confers a new right, privilege or immunity, the grant is strictly construed, and the mode prescribed for its acquisition, preservation, enforcement and enjoyment is mandatory.
2 Lewis' Sutherland Stat. Constr., sec. 632.
Where an existing right or privilege is subjected to regulation by a statute in negative words, or those which import that it is only to be exercised in a prescribed manner, the mode so prescribed is imperative.
2 Lewis' Sutherland Stat. Constr., sec. 633.
It is generally held that, in the exercise of his common-law powers, an attorney-general may not only control and manage all litigation in behalf of the state, he may also intervene in all suits or proceedings which are of concern to the general public.
Accordingly, as chief law officer of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interest may, from time to time, require, and may institute, conduct and maintain all such suits and proceedings as he deems necessary for the enforcement of the laws of the state, the preservation of order and the protection of public rights.
2 R.C.L. 915.
It is generally acknowledged that the attorney-general is the proper party to determine the necessity or advisability of undertaking or prosecuting actions on the part of the state. Thus it has been held that the discretion of the attorney-general in determining what the public interest requires as to bringing an action against a domestic business corporation, or its officers, is absolute, and cannot be made the subject of inquiry by the court.
2 R.C.L. 919.
Evidently it was the intention of the legislature in enacting section 3753 of the Code of 1930, and section 7 of the chapter 325 of the Laws of 1924, to leave it discretionary with the attorney-general or district attorney as to what action should be brought upon the report of the chief examiner in all matters pertaining to state officers.
Provisos and exceptions are similar; intended to restrain the enacting clause; to except something which would otherwise be without it, or in some manner modify it. A proviso is something engrafted upon a proceeding enactment, and is legitimately used for the purpose of taking special cases out of a general class or to guard against misinterpretation. The general intent will be controlled by the particular intent subsequently expressed. Where the statute forbids the doing of an act upon a condition precedent, the condition is valid and the prohibition absolute.
2 Lewis' Sutherland Stat. Constr., sec. 351.
A primary rule of construction is that the legislature must be assumed to have meant precisely what the words of the law, as commonly understood, import; and this may be said to be the fundamental and controlling rule of construction.
Lemonius v. Mayer, 71 Miss. 514, 14 So. 337.
Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only case of subject within the scope of the general provision, then the particular provision must prevail; and, if both cannot apply, the particular provision will be treated as an exception to the general provision.
2 Lewis' Sutherland Stat. Constr., page 744.
Argued orally by Fred Lotterhos and Cecil Travis, for appellant, and by H.H. Creekmore, for appellee.
Under the laws of this state, the insurance commissioner is the fire marshal, and a so-called tax of one-fifth of one per cent on the gross premium receipts of fire insurance companies is required to be paid over to the insurance commissioner to cover the expenses of investigations of fires. The commissioner is authorized to employ a deputy for this purpose and to compensate the deputy out of the said fund.
Our statutes (Code 1930, sections 2905, 2906) also provide that it shall be unlawful for any state officer to appoint and pay out of the public funds any person as deputy who is related to the officer within the third degree, and that, if any officer shall violate this provision, he shall be liable on his official bond for all amounts paid to said relative. The insurance commissioner for a period of approximately three years had appointed or employed his brother as deputy fire marshal and had paid to his said brother out of said fund an aggregate of fourteen thousand two hundred three dollars and thirty cents.
Also under our statutes the state auditor is made the chief inspector of all the accounts and books relating to the collection, expenditure, and settlement of public funds of and for all the public officers and institutions of the state and its subdivisions in so far as same are supported in whole or in part by the state or any of its subdivisions, and the auditor is authorized to demand and collect any amount found due by any officer or employee, when upon an investigation by the auditor he finds any sum due. The auditor made an investigation of the books and accounts of the insurance commissioner and having discovered that the insurance commissioner had employed his brother and had paid him as aforesaid, the auditor demanded that the commissioner refund the entire amount so paid, and, the demand being refused, the auditor brought suit to recover the said sum.
The insurance commissioner has raised a preliminary question one that is decisive, so far as this particular suit is concerned. The insurance commissioner challenges the power of the auditor to bring and maintain a suit such as is presented in this case. The authority of the auditor to institute and prosecute a suit such as this is to be found, if found at all, in section 3753, Code 1930. The general provisions of this section confer upon the auditor wide and comprehensive powers in respect to suits for any and all amounts found by him to be due by officers and employees, and give him broad authority to employ attorneys to prosecute said suits. In the same section, however, and following the said general enactment, there is included a special enactment in these words: "Instead of employing attorneys to assist him to recover any amounts due as aforesaid or for any illegal allowances or expenditures or amounts due as aforesaid, . . . the said chief inspector in the event such examination discloses misfeasance, malfeasance, or nonfeasance on the part of any such public officer or employee or other person, shall deliver a certified copy of said report to the district attorney or the attorney-general for such action as may be proper in the premises. . . ."
It is at once to be seen that there is a particular enactment in respect to cases which disclose misfeasance, malfeasance, or nonfeasance. There is therefore involved the application of that well-settled principle in the construction of statutes that, where a statute contains both a particular and a general enactment, and the general enactment in its most comprehensive sense would include what is embraced in the particular one, the latter must be given effect as to all cases which fall within the particular provision, and the general enactment must be taken to embrace only such cases within its general language as are not within the provisions of the particular enactment. 25 R.C.L., p. 1010, and authorities under note 5; 36 Cyc., p. 1130, and authorities under note 69; 2 Lewis' Suth. Stat. Const., p. 744; Black on Interpretation of Laws, p. 201. Applying this principle, as we must apply it, if the case, in its substantial aspects, involves misfeasance, malfeasance, or nonfeasance, then the particular provision above quoted takes the suit into the province of the attorney-general or district attorney and away from the auditor.
Malfeasance, on the part of an officer, is the doing of that which he has no authority of law to do and which therefore is positively wrongful or unlawful; misfeasance is the doing in a wrongful manner of that which the law authorizes or requires him to do; while nonfeasance is the substantial failure to perform a required legal duty. The law authorized and required the insurance commissioner to appoint and to pay a deputy fire marshal. Therefore he was guilty of no malfeasance in making the appointment, and, since he actually made the appointment, there was no nonfeasance. It follows that, if the appointment was of a disqualified person, as contended by appellant, the act was one of misfeasance, and hence the quoted particular provision of the statute applies, which requires the matter of a suit involving misfeasance by a state officer to be referred to and brought by the attorney-general; that is to say, when the gist of the suit, the main and controlling feature involves a question of misfeasance, as distinguished from the mere matter of the items of a complicated accounting, the authority to bring such a suit against a state officer, upon the report of the examination by the auditor, is in the attorney-general and not in the auditor.
It may be argued that most of the cases, wherein the auditor finds an amount or amounts due to be paid over, will involve malfeasance, misfeasance, or nonfeasance in some form, and that to give the statute the construction which we have above indicated will strip the auditor of authority to bring suits in a majority of the cases investigated by him. Whether this will be true, we do not know; nor do we say that the particular provision in this statute is to have a strict interpretation. But, as to the present suit, it is apparent that the gist thereof is not a matter of accounting. On the contrary, there is involved, as the basis or chief item of the suit, an important legal question; and it is more in harmony with our governmental system that the attorney-general, who is the responsible head of the legal department of the state, shall have initial jurisdiction over those important legal questions which affect the general interests or policy of the state; whereas the auditor is the responsible head of the accounting department of the state, and it is consistent, where only questions of fact upon accounts and the settlement thereof are in issue, or where the legal questions involved are only incidental or relatively of minor importance, that the auditor shall handle such cases on his own responsibility without the necessity of reference to the attorney-general.
It follows that we concur in the opinion of the learned chancellor that the auditor was without authority to institute this suit, and the decree dismissing the same must be affirmed.
Affirmed.